Employment legal updates from Shoosmiths LLPhttps://www.shoosmiths.co.uk/rss/5670.aspxEmployment legal updates from Shoosmiths LLPen-GBShoosmithshttps://www.shoosmiths.co.uk/-/media/shoosmiths/shoosmiths-rss-image.jpg?h=144&w=144Employment legal updates from Shoosmiths LLPhttps://www.shoosmiths.co.uk/rss/5670.aspx60{70060E46-23A5-4D2B-9CEE-D61219F67222}https://www.shoosmiths.co.uk/client-resources/legal-updates/employment-law-plans-in-the-pipeline.aspxEmployment law: Plans in the PipelineConsulting on proposals to introduce new employment rights has been an important government initiative in recent months. This article summarises some of the key proposals.Thu, 05 Sep 2019 00:00:00 +0100<![CDATA[Laura Wright and Antonia Blackwell]]><![CDATA[Consulting on proposals to introduce new employment rights has been an important government initiative in recent months. This article summarises some of the key proposals.]]>{F674194F-5EBD-4E15-BE41-C90B58C71240}https://www.shoosmiths.co.uk/news/press-releases/shoosmiths-appointed-to-inaugural-wework-emea-legal-panel.aspxShoosmiths appointed to inaugural WeWork EMEA legal panelShoosmiths will work closely with WeWork, a global space, community and service company and will focus, in particular, in providing legal advice in the following key areas in the UK and Ireland, Employment; Commercial; Corporate; and Health & Safety and Environmental.Tue, 03 Sep 2019 00:00:00 +0100<![CDATA[Mark Elder ]]><![CDATA[Shoosmiths will work closely with WeWork, a global space, community and service company and will focus, in particular, in providing legal advice in the following key areas in the UK and Ireland, Employment; Commercial; Corporate; and Health & Safety and Environmental.]]>{7D65EE06-8B25-46CB-8A4E-9E2B138B2643}https://www.shoosmiths.co.uk/client-resources/legal-updates/common-pitfalls-in-handling-redundancies.aspxCommon pitfalls in handling redundanciesRedundancies are commonplace as organisations grow and contract, move location and reorganise. Handling redundancies is not always straightforward and there are some common pitfalls which employers fall into when dealing with redundancy situations.Tue, 27 Aug 2019 00:00:00 +0100<![CDATA[Navi Atwal and Antonia Blackwell]]><![CDATA[Redundancies are commonplace as organisations grow and contract, move location and reorganise. Handling redundancies is not always straightforward and there are some common pitfalls which employers fall into when dealing with redundancy situations.]]>{7BBA441D-6E3E-4E0B-BCCC-E60E9E28B35B}https://www.shoosmiths.co.uk/client-resources/legal-updates/how-to-draft-secondment-agreements.aspxHow to draft secondment agreementsOur drafting masterclass series continues with a look at alternative working arrangements – namely, secondments, sabbaticals, fixed term roles and zero hours arrangements. In this article, we discuss the key factors in drafting a secondment agreement.Fri, 23 Aug 2019 23:00:00 +0100<![CDATA[ Michael Briggs and Sarah Owbridge]]><![CDATA[Our drafting masterclass series continues with a look at alternative working arrangements – namely, secondments, sabbaticals, fixed term roles and zero hours arrangements. In this article, we discuss the key factors in drafting a secondment agreement.]]>{6B641FC3-84D4-4946-819F-8113BBADE74D}https://www.shoosmiths.co.uk/client-resources/legal-updates/personal-data-breaches-by-employers-when-do-you-have-to-own-up.aspxPersonal data breaches by employers – when do you have to own up?Do you as employer and data controller have to report all personal data breaches to the ICO and/or the data subject? Do your processors need to tell you when they suffer a breach? In this article, we consider the extent of an employer’s obligations.Mon, 19 Aug 2019 22:00:00 +0100<![CDATA[michelle clarke Gwynneth Tan ]]><![CDATA[Do you as employer and data controller have to report all personal data breaches to the ICO and/or the data subject? Do your processors need to tell you when they suffer a breach? In this article, we consider the extent of an employer’s obligations.]]>{5F2B79CD-CFA9-442B-8468-DE5E29426C53}https://www.shoosmiths.co.uk/client-resources/legal-updates/so-you-think-youve-blown-the-whistle-and-the-boss-is-mad-now-what.aspxSo you think you’ve blown the whistle and the boss is mad, now what?When an individual makes a protected disclosure (aka ‘blows the whistle’) they should not be subjected to a detriment or dismissed as a result. This article explores when ‘whistle-blower’ protection can be relied on by an employee or worker.Tue, 06 Aug 2019 00:00:00 +0100<![CDATA[Rachel Mulvany and Antonia Blackwell]]><![CDATA[When an individual makes a protected disclosure (aka ‘blows the whistle’) they should not be subjected to a detriment or dismissed as a result. This article explores when ‘whistle-blower’ protection can be relied on by an employee or worker.]]>{59705D03-E0DF-400B-B99D-186E1BCCD6DE}https://www.shoosmiths.co.uk/client-resources/legal-updates/quarter-3-employment-case-law-update.aspxQuarter 3: Employment Case Law UpdateFor the next installment in our quarterly case law series, we look back at some of the key cases since April 2019 and the lessons which we can learn from them.Thu, 01 Aug 2019 00:00:00 +0100<![CDATA[Laura Wright and Antonia Blackwell]]><![CDATA[For the next installment in our quarterly case law series, we look back at some of the key cases since April 2019 and the lessons which we can learn from them.]]>{F189B46B-DB2D-4914-A098-60E0017706BF}https://www.shoosmiths.co.uk/client-resources/legal-updates/when-worlds-collide-which-belief-is-right.aspxWhen worlds collide – which belief is right?One person’s belief is another one’s extremism, one person’s faith is another one’s bigotry: in this article we explore where the boundaries might lie when an employer faces a clash between two protected characteristics.Wed, 24 Jul 2019 00:00:00 +0100<![CDATA[Simon Fennell ]]><![CDATA[One person’s belief is another one’s extremism, one person’s faith is another one’s bigotry: in this article we explore where the boundaries might lie when an employer faces a clash between two protected characteristics.]]>{7C7D83C6-4CF5-48A8-8A39-44ECC8B1E253}https://www.shoosmiths.co.uk/client-resources/legal-updates/how-to-draft-consultancy-agreements-part-3.aspxHow to Draft Consultancy Agreements – Part 3In the final article in our “how to draft consultancy agreements” series, we take a look at some common problem areas which businesses need to be alert to.Mon, 22 Jul 2019 00:00:00 +0100<![CDATA[Amy Anderson and Kate Featherstone]]><![CDATA[In the final article in our “how to draft consultancy agreements” series, we take a look at some common problem areas which businesses need to be alert to.]]>{E4072A1F-1F24-4367-ADFD-570385547A1A}https://www.shoosmiths.co.uk/client-resources/legal-updates/what-do-employers-need-to-consider-before-suspending-an-employee.aspxWhat do employers need to consider before suspending an employee?Suspending an employee in response to allegations of misconduct can impact on the subsequent disciplinary process and result in claims for breach of contract and/or constructive dismissal.Tue, 25 Jun 2019 00:00:00 +0100<![CDATA[Eilidh Wood]]><![CDATA[Suspending an employee in response to allegations of misconduct can impact on the subsequent disciplinary process and result in claims for breach of contract and/or constructive dismissal.]]>{5EB65C5C-0952-4938-85BD-847C1E425BC4}https://www.shoosmiths.co.uk/client-resources/legal-updates/employing-international-students.aspxEmploying International studentsThe rules around employing international students whilst they are still studying, the position when their course has finished and the steps needed to be able to retain them are complex. We consider these areas, the common pitfalls and how to avoid them!Tue, 25 Jun 2019 00:00:00 +0100<![CDATA[Rachel Harvey]]><![CDATA[The rules around employing international students whilst they are still studying, the position when their course has finished and the steps needed to be able to retain them are complex. We consider these areas, the common pitfalls and how to avoid them!]]>{16BDCC1C-A9C7-406A-B063-452F53336034}https://www.shoosmiths.co.uk/client-resources/legal-updates/how-to-draft-consultancy-agreements-part-2.aspxHow to draft Consultancy Agreements – Part 2In this, our next article in the series looking at drafting consultancy agreements, we focus on key terms to include in the agreement once an organisation has decided that the individual is to be engaged as a consultant.Tue, 25 Jun 2019 00:00:00 +0100<![CDATA[Laura Wright and Charles Rae]]><![CDATA[In this, our next article in the series looking at drafting consultancy agreements, we focus on key terms to include in the agreement once an organisation has decided that the individual is to be engaged as a consultant.]]>{D1AE2290-AAEE-4CC9-87D5-42334F066034}https://www.shoosmiths.co.uk/client-resources/legal-updates/warning-to-employers-of-the-financial-cost-of-discrimination.aspxWarning to employers of the financial cost of discriminationThe Employment Appeal Tribunal has recently declared that a one-off act of discrimination can fall into the middle band of injury to feelings award, significantly increasing the potential financial exposure to employers.Wed, 19 Jun 2019 00:00:00 +0100<![CDATA[Antonia Blackwell]]><![CDATA[The Employment Appeal Tribunal has recently declared that a one-off act of discrimination can fall into the middle band of injury to feelings award, significantly increasing the potential financial exposure to employers.]]>{A8E498E4-8815-44C0-B209-492AF98E6578}https://www.shoosmiths.co.uk/client-resources/legal-updates/should-employers-equalise-shared-parental-pay-with-maternity-pay.aspxShould employers equalise shared parental pay with maternity pay?In a judgment which will reassure many employers, two male employees, who argued that their respective employers’ failure to pay enhanced shared parental leave was an act of sex discrimination, have had their claims dismissed by the Court of Appeal.Wed, 19 Jun 2019 00:00:00 +0100<![CDATA[Alex Lloyd]]><![CDATA[In a judgment which will reassure many employers, two male employees, who argued that their respective employers’ failure to pay enhanced shared parental leave was an act of sex discrimination, have had their claims dismissed by the Court of Appeal.]]>{70B191D7-8F03-48DE-9E25-67D6E258AD95}https://www.shoosmiths.co.uk/client-resources/legal-updates/the-hidden-epidemic-of-sexual-harassment-of-lgbt-people-in-the-workplace.aspxThe ‘Hidden Epidemic’ of Sexual Harassment of LGBT+ People in the WorkplaceThe Trades Union Congress (TUC) has reported that nearly seven in ten lesbian, gay, bisexual, and trans (LGBT+) people have been sexually harassed at work.Tue, 11 Jun 2019 23:00:00 +0100<![CDATA[ Michael Briggs]]><![CDATA[The Trades Union Congress (TUC) has reported that nearly seven in ten lesbian, gay, bisexual, and trans (LGBT+) people have been sexually harassed at work.]]>{E52318DA-A1D3-4119-8DA2-A658881D8BC9}https://www.shoosmiths.co.uk/client-resources/legal-updates/happy-pride-month.aspxHappy Pride Month to all<span style="color: #4d4d4d;">Every June, Pride Month is celebrated across the world to honour the 1969 Stonewall Riots and to recognise the impact that LGBT+ individuals have had on history locally, nationally and internationally.</span>Fri, 07 Jun 2019 00:00:00 +0100<![CDATA[ Michael Briggs]]><![CDATA[<span style="color: #4d4d4d;">Every June, Pride Month is celebrated across the world to honour the 1969 Stonewall Riots and to recognise the impact that LGBT+ individuals have had on history locally, nationally and internationally.</span>]]>{4730F9BE-F262-46E1-998A-8766E42B2328}https://www.shoosmiths.co.uk/client-resources/legal-updates/how-to-draft-consultancy-agreements-part-1.aspxHow to Draft Consultancy Agreements – Part 1Our drafting masterclass series continues with a look at consultancy agreements. In this article we focus on those factors which need to be considered and addressed before embarking on the drafting of such agreements.Wed, 29 May 2019 00:00:00 +0100<![CDATA[Jo Tunnicliff and Antonia Blackwell]]><![CDATA[Our drafting masterclass series continues with a look at consultancy agreements. In this article we focus on those factors which need to be considered and addressed before embarking on the drafting of such agreements.]]>{FFE22BE1-623F-4D8D-AAD5-ABF3A38E9C7B}https://www.shoosmiths.co.uk/client-resources/legal-updates/flexibility-v-certainty-working-time-woes.aspxFlexibility v. Certainty: Working Time WoesAccording to the European Court of Justice last week, employers must have, “an objective, reliable and accessible system enabling the duration of time worked by each worker to be measured”. We look at what this judgment means for businesses in practice.Wed, 22 May 2019 00:00:00 +0100<![CDATA[Emma Morgan and Amy Anderson]]><![CDATA[According to the European Court of Justice last week, employers must have, “an objective, reliable and accessible system enabling the duration of time worked by each worker to be measured”. We look at what this judgment means for businesses in practice.]]>{8C2F4E75-B6DF-49A7-9906-566EE65D986D}https://www.shoosmiths.co.uk/client-resources/legal-updates/top-tips-for-employers-mental-health-awareness-week.aspxTop Tips for Employers: Mental Health Awareness WeekWith Mental Health Awareness week taking place this week, it is even more important to maintain good principles of managing mental health in the workplace, and at all times hereafter. As an employer, what action could you take?Thu, 16 May 2019 00:00:00 +0100<![CDATA[Michael Briggs]]><![CDATA[With Mental Health Awareness week taking place this week, it is even more important to maintain good principles of managing mental health in the workplace, and at all times hereafter. As an employer, what action could you take?]]>{859226D2-7DF5-4586-B189-5F9A58CF8A63}https://www.shoosmiths.co.uk/client-resources/legal-updates/quarter-2-employment-case-law-update.aspxQuarter 2: Employment case law updateFor the next installment in our quarterly case law series, we look back at some of the key cases from the past three months and the lessons which we can learn from them.Wed, 24 Apr 2019 00:00:00 +0100<![CDATA[Antonia Blackwell]]><![CDATA[For the next installment in our quarterly case law series, we look back at some of the key cases from the past three months and the lessons which we can learn from them.]]>{ED5DF277-FFF8-4EC3-A450-1EDD65E42100}https://www.shoosmiths.co.uk/client-resources/legal-updates/settlement-agreements-commonly-negotiated-terms.aspxSettlement Agreements – commonly negotiated termsIn this article, the third and final guide to drafting settlement agreements in our masterclass series, we focus on those extra terms which are most commonly sought by both the employer and the employee and the limitations which might be placed on them.Mon, 15 Apr 2019 00:00:00 +0100<![CDATA[Antonia Blackwell]]><![CDATA[In this article, the third and final guide to drafting settlement agreements in our masterclass series, we focus on those extra terms which are most commonly sought by both the employer and the employee and the limitations which might be placed on them.]]>{AF8F8284-1018-42BD-B3A6-595B2FB59D58}https://www.shoosmiths.co.uk/client-resources/legal-updates/springing-forward-look-ahead-to-changes-in-employment-law-from-april-2019.aspxSpringing forward – a look ahead to changes in employment law from April 2019April is always a key time for employers as the Government introduces a raft of changes to annual pay rates and looks ahead to upcoming proposals for reform.Thu, 28 Mar 2019 00:00:00 Z<![CDATA[Antonia Blackwell]]><![CDATA[April is always a key time for employers as the Government introduces a raft of changes to annual pay rates and looks ahead to upcoming proposals for reform.]]>{3B1591DF-7458-43DC-99B0-FC35ADAE1C31}https://www.shoosmiths.co.uk/client-resources/legal-updates/drafting-settlement-agreements-required-terms.aspxDrafting settlement agreements - required termsIn this article, our second of three guides to drafting settlement agreements, we focus on the terms and clauses that are an absolute necessity for inclusion in a settlement agreement.Wed, 20 Mar 2019 00:00:00 Z<![CDATA[Alex Lloyd]]><![CDATA[In this article, our second of three guides to drafting settlement agreements, we focus on the terms and clauses that are an absolute necessity for inclusion in a settlement agreement.]]>{4A211A35-EE69-4D48-85A2-352D139AF05A}https://www.shoosmiths.co.uk/client-resources/legal-updates/the-changing-face-of-non-disclosure-agreements.aspxThe changing face of non-disclosure agreementsBusiness Minister Kelly Tolhurst has announced that the rules surrounding non-disclosure agreements (NDAs) and confidentiality clauses will become more restrictive. We look at the proposed changes and how these could impact employers.Mon, 18 Mar 2019 00:00:00 Z<![CDATA[Jo Tunnicliff and Antonia Blackwell]]><![CDATA[Business Minister Kelly Tolhurst has announced that the rules surrounding non-disclosure agreements (NDAs) and confidentiality clauses will become more restrictive. We look at the proposed changes and how these could impact employers.]]>{11F20400-4C46-4804-8ED2-093131A004C7}https://www.shoosmiths.co.uk/client-resources/legal-updates/a-common-and-costly-mistake-wage-and-benefit-over-payment.aspxA common and costly mistake - wage and benefit over paymentMistakes happen. Despite rigorous payroll and HR processes and procedures sometimes the paperwork is delayed, goes astray, or a keying error occurs. If an individual is still employed repayment can be relatively straight forward. But what if they are not?Mon, 11 Mar 2019 00:00:00 Z<![CDATA[Louise Kitchen]]><![CDATA[Mistakes happen. Despite rigorous payroll and HR processes and procedures sometimes the paperwork is delayed, goes astray, or a keying error occurs. If an individual is still employed repayment can be relatively straight forward. But what if they are not?]]>{7E8BC67F-6CB9-452E-B4B3-1DD401CB7382}https://www.shoosmiths.co.uk/client-resources/legal-updates/celebrating-lgbt-history-month.aspxCelebrating LGBT History Month: We’ve come a long, long way together...February is LGBT History Month, which is an annual event intended to promote a diverse and inclusive modern society and to provide education and insight about the history of the gay rights movement and issues faced by the LGBT+ community.Thu, 28 Feb 2019 00:00:00 Z<![CDATA[Michael Briggs]]><![CDATA[February is LGBT History Month, which is an annual event intended to promote a diverse and inclusive modern society and to provide education and insight about the history of the gay rights movement and issues faced by the LGBT+ community.]]>{5036CA98-1C85-4820-9EAD-78C9A3F9AB10}https://www.shoosmiths.co.uk/client-resources/legal-updates/tupe-case-law-update.aspxTUPE case law updateIn this article we look back at some key cases and updates from the last few months involving TUPE and the lessons which we can learn from them.Wed, 27 Feb 2019 23:00:00 Z<![CDATA[Jo Tunnicliff and Antonia Blackwell]]><![CDATA[In this article we look back at some key cases and updates from the last few months involving TUPE and the lessons which we can learn from them.]]>{40CC3FD5-568C-4290-84A6-4348E661C1EB}https://www.shoosmiths.co.uk/client-resources/legal-updates/apprenticeship-levy-update-are-you-about-to-start-throwing-money-away.aspxApprenticeship Levy update – are you about to start throwing money away?When the levy was launched in 2017 it was billed as a major step towards improving the efficiency of the UK economy. Two years on, apprenticeship starts have declined and time is running out for employers to make use of hundreds of millions of pounds.Fri, 22 Feb 2019 00:00:00 Z<![CDATA[Simon Fennell ]]><![CDATA[When the levy was launched in 2017 it was billed as a major step towards improving the efficiency of the UK economy. Two years on, apprenticeship starts have declined and time is running out for employers to make use of hundreds of millions of pounds.]]>{E96FC43D-0EB4-4358-AEBC-A71421F2266D}https://www.shoosmiths.co.uk/client-resources/legal-updates/how-settlement-agreements-work-and-when-to-use-them.aspxHow settlement agreements work and when to use themOur drafting masterclass series continues with a look at settlement agreements. We will consider how settlement agreements work and when to use them, key terms and common negotiation points.Thu, 07 Feb 2019 00:00:00 Z<![CDATA[Esther Wilkins ]]><![CDATA[Our drafting masterclass series continues with a look at settlement agreements. We will consider how settlement agreements work and when to use them, key terms and common negotiation points.]]>{38E9168E-A4C6-4CDF-B4E4-6669834252E8}https://www.shoosmiths.co.uk/client-resources/legal-updates/quarterly-employment-case-law-update.aspxQuarterly employment case law updateIn this article we take a look back at some of the key cases from the past three months and the lessons which we can learn from them.Tue, 29 Jan 2019 00:00:00 Z<![CDATA[Antonia Blackwell ]]><![CDATA[In this article we take a look back at some of the key cases from the past three months and the lessons which we can learn from them.]]>{493CB627-4D17-41C7-9BF7-1C20AF13A221}https://www.shoosmiths.co.uk/client-resources/legal-updates/drug-testing-in-workplace-warning-for-employers.aspxDrug testing in the workplace: a warning for employersThe recent tribunal case of Ball v First Essex Buses Limited has demonstrated just how careful employers must be when conducting investigations and instigating disciplinary proceedings against employees who have fallen foul of a drugs test in the workplace.Fri, 25 Jan 2019 00:00:00 Z<![CDATA[Michael Briggs]]><![CDATA[The recent tribunal case of Ball v First Essex Buses Limited has demonstrated just how careful employers must be when conducting investigations and instigating disciplinary proceedings against employees who have fallen foul of a drugs test in the workplace.]]>{FC459DA3-8198-4FCF-BFE1-364285418361}https://www.shoosmiths.co.uk/client-resources/legal-updates/metoo-risks-liability-insurers.aspx#MeToo: Risks for liability insurers and their insureds<span>One year on from #MeToo, Bloomberg estimates at least 425 prominent people across industries had been publicly accused of sexual misconduct.</span>Fri, 18 Jan 2019 00:00:00 Z<![CDATA[Susannah Wakefield]]><![CDATA[<span>One year on from #MeToo, Bloomberg estimates at least 425 prominent people across industries had been publicly accused of sexual misconduct.</span>]]>{F84D4D45-23F8-4818-9CB8-E9C75C42E67D}https://www.shoosmiths.co.uk/client-resources/legal-updates/zero-hours-contracts-common-pitfalls-employers.aspxZero-hours contracts – common pitfalls for employersZero-hours contracts can be a positive part of work-life balance if they offer genuine two-way flexibility, says Matthew Taylor, the government's lead reviewer of modern working practices.Thu, 17 Jan 2019 00:00:00 Z<![CDATA[Jo Tunnicliff]]><![CDATA[Zero-hours contracts can be a positive part of work-life balance if they offer genuine two-way flexibility, says Matthew Taylor, the government's lead reviewer of modern working practices.]]>{2FD7814F-1DE3-4F01-9EB4-BCE4BA69284D}https://www.shoosmiths.co.uk/client-resources/legal-updates/drafting-employment-documents-a-new-series-for-2019.aspxDrafting Employment documents: a new series for 2019During 2019 we will be providing a series of articles on how best to draft certain commonly used legal documents within the human resources arena. This follows the success of last year's Breaking Down the Handbook series, focusing on preparing policies and procedures for staff handbooks.Tue, 08 Jan 2019 00:00:00 Z<![CDATA[Michael Briggs]]><![CDATA[During 2019 we will be providing a series of articles on how best to draft certain commonly used legal documents within the human resources arena. This follows the success of last year's Breaking Down the Handbook series, focusing on preparing policies and procedures for staff handbooks.]]>{1C19AB4A-3F73-46C4-9892-AC89604CE353}https://www.shoosmiths.co.uk/client-resources/legal-updates/drug-and-alcohol-policies.aspxDrug and alcohol policiesThis final month, in our Breaking Down the Handbook series, we look at drug and alcohol policies and why they are important for employers to have when dealing with employees with drug and alcohol misuse problems.Fri, 21 Dec 2018 00:00:00 Z<![CDATA[Beth Jenkins]]><![CDATA[This final month, in our Breaking Down the Handbook series, we look at drug and alcohol policies and why they are important for employers to have when dealing with employees with drug and alcohol misuse problems.]]>{63E59A5C-F2AC-4429-8E86-E151962F91E8}https://www.shoosmiths.co.uk/client-resources/legal-updates/five-key-employment-cases-of-2018.aspxFive key employment cases of 2018As we enter the festive period and the start of a new year, we take a look back on some of the most notable cases of 2018.Fri, 14 Dec 2018 00:00:00 Z<![CDATA[Antonia Blackwell ]]><![CDATA[As we enter the festive period and the start of a new year, we take a look back on some of the most notable cases of 2018.]]>{D704895E-5D24-493E-AC86-18DE3D60FFB9}https://www.shoosmiths.co.uk/client-resources/legal-updates/christmas-parties-in-the-metoo-era-how-to-minimise-risk.aspxChristmas parties in the #MeToo era: how to minimise riskA year has passed since the birth of the #MeToo movement shone the spotlight on accounts of sexual harassment across the globe. As we enter Christmas party season, employers should be mindful of their legal responsibilities to protect their employees.Wed, 05 Dec 2018 00:00:00 Z<![CDATA[Michael Briggs]]><![CDATA[A year has passed since the birth of the #MeToo movement shone the spotlight on accounts of sexual harassment across the globe. As we enter Christmas party season, employers should be mindful of their legal responsibilities to protect their employees.]]>{88BA496C-54DE-404A-ABA8-EB7F2CA83380}https://www.shoosmiths.co.uk/client-resources/legal-updates/metoo-despite-the-headlines-the-vast-majority-of-workplaces-are-unaffected.aspx#metoo – despite the headlines the vast majority of workplaces are unaffectedThose who attended our national seminars may well remember that we carried out a survey as to the effect of #metoo in workplaces. Of the 201 people who answered the survey, 17% said they had been impacted by the effects of #metoo, with 83% saying they hadn&rsquo;t noticed any increase in sexual harassment claims.Thu, 22 Nov 2018 00:00:00 Z<![CDATA[Paula Rome]]><![CDATA[Those who attended our national seminars may well remember that we carried out a survey as to the effect of #metoo in workplaces. Of the 201 people who answered the survey, 17% said they had been impacted by the effects of #metoo, with 83% saying they hadn&rsquo;t noticed any increase in sexual harassment claims.]]>{60C068B5-1659-4867-8ADC-93A7E6912090}https://www.shoosmiths.co.uk/client-resources/legal-updates/gender-recognition-certificates-a-simplified-process.aspxGender Recognition Certificates: a simplified process?<p><span>The Equality and Human Rights Commission (the Commission) has published a response to the government&rsquo;s consultation on the potential reform of the process to obtain a Gender Recognition Certificate (GRC).</span></p>Tue, 20 Nov 2018 00:00:00 Z<![CDATA[Michael Briggs]]><![CDATA[<p><span>The Equality and Human Rights Commission (the Commission) has published a response to the government&rsquo;s consultation on the potential reform of the process to obtain a Gender Recognition Certificate (GRC).</span></p>]]>{256F77ED-66D8-4EDE-8733-DB70528C01AC}https://www.shoosmiths.co.uk/client-resources/legal-updates/ensuring-your-workplace-is-equipped-to-deal-with-sexual-harassment-allegations.aspxEnsuring your workplace is equipped to deal with sexual harassment allegations?<p class="SHNormal">Although harassment is firmly front and centre in the media it would appear in a large number of workplaces there has been little practical impact.</p>Thu, 15 Nov 2018 00:00:00 Z<![CDATA[Paula Rome]]><![CDATA[<p class="SHNormal">Although harassment is firmly front and centre in the media it would appear in a large number of workplaces there has been little practical impact.</p>]]>{AA43BB64-F17C-4309-A8C5-D70099F530E3}https://www.shoosmiths.co.uk/client-resources/legal-updates/quarterly-case-law-update-from-the-shoosmiths-employment-team.aspxQuarterly Case law update from the Shoosmiths Employment TeamIn this article, we take a look back through some key cases from the last three months and the lessons which we can learn from them.Wed, 14 Nov 2018 00:00:00 Z<![CDATA[Beth Jenkins and Paula Rome]]><![CDATA[In this article, we take a look back through some key cases from the last three months and the lessons which we can learn from them.]]>{730822EA-D35B-4024-8273-E133B4BC658C}https://www.shoosmiths.co.uk/client-resources/legal-updates/breaking-down-the-handbook-time-off-work-policies.aspxBreaking down the handbook: Time off work policiesIn the latest instalment of the Breaking Down the Handbook series, we discuss time off work policies, looking at how to manage difficult circumstances and make expectations clear to your employees.Thu, 01 Nov 2018 00:00:00 Z<![CDATA[Alex Lloyd]]><![CDATA[In the latest instalment of the Breaking Down the Handbook series, we discuss time off work policies, looking at how to manage difficult circumstances and make expectations clear to your employees.]]>{D2686A99-A6D0-4F77-AAFC-85BF276CE2AA}https://www.shoosmiths.co.uk/client-resources/legal-updates/focus-on-flexible-working-policies-14596.aspxFocus on flexible working policies In readiness for National Work Life Week from 1 - 5 October, now is the time to consider whether your flexible working policies are fit for purpose. In this article in our Breaking Down the Handbook series we highlight what such policies should cover. Background Working Families is the UK's leading work-life balance organisation. It helps working parents and carers and their employers find a better balance between responsibilities at home and work. Each year, National Work Life Week takes place to highlight the need for both employers and employees to focus on well-being at work and work-life balance (accepting that this should not just be a focus for one week of the year). Employers can use this week to provide, or even bolster, their associated activities for staff, and showcase their own approach to flexible and other work-life policies and practices. As highlighted in our recent flexible working article, working flexibly is key to maintaining a motivated and loyal workforce and is essential to attracting diverse talent. Flexible working and family leave policies are key to supporting a work-life balance. However, it is important to recognise that flexible working means many things to many different people. Some may wish to work specific hours to suit family needs, while those without family commitments may still wish to have flexibility in their working lives to suit their own personal commitments and/or other work-life priorities. Some may have certain skills which are best used at certain times of the day, week or year. The important thing for employers is to understand that everyone is different and that a set of rigid rules won't necessarily benefit their business in the long-run and this should be reflected in any policies. Both the aging and millennial workforce are clearly changing the way we all work. Flexible working policies Flexible working policies are not new, so they must be continually adapted to suit the changing needs of an employer's business alongside the expectations of their workforce. This is especially so when traditional working hours and patterns are no longer the norm and there is so much commentary and statistics in existence confirming the benefits of a flexible workforce; being good for business, the economy and society as a whole. It is therefore helpful for employers to have relevant and clear policies in place which are regularly reviewed and updated to ensure that all employees know of the approach taken by their employer in this area. Additional guidance, support and role-modelling from management are also key to the success of flexible working practices. Content of flexible working policies Any such policy should include: Eligibility requirements. Every employee has the right to request flexible working provided that they have 26 weeks' continuous employment service and have not made a formal request to work flexibly in the last 12 months. This is a statutory right, so, as a minimum, an employer should make their employees aware of it in a policy document. Many employers also allow all employees and workers to make informal requests (see below) to work flexibly where they would otherwise not be able to do so under the statutory scheme. The conditions attaching to any requests should clearly be set out in the policy. A non-exhaustive list of the various options available for flexible working. There are many options which can be considered under flexible working policies, including reduced or varied working hours, days or weeks (including part-time working, compressed hours, annualised hours or flexi-hours), change of location (including homeworking and other agile or remote working arrangements), and/or job-sharing arrangements. An informal procedure, for those who cannot make a statutory request, or for those who don't necessarily want to make a permanent variation to their working pattern. It is reasonable for the employer to set out an application and decision making procedure to be followed in these circumstances. A formal procedure setting out the way in which a formal request to work flexibly must be made, and who it should be made to. The statutory right to request procedure is actually quite complicated, especially to those who have never made one before. It involves submitting a written and dated application, which must contain prescribed information, including: confirmation that it is statutory request to work flexibly and that the employee is eligible to make a request; clear reasons for the request, whether that be for family reasons, for reasons connected to a protected characteristic or otherwise. In respect of protected characteristics, examples may include reasonable adjustments because of disability for the employee making the request or for someone they care for; as much information as possible about both the current and desired working patterns, the effect the changes will have on the work undertaken by the employee and the effect that it will have on others such as the employee's colleagues. Employees are often encouraged to set out how they believe any perceived barriers to their application can be overcome; the date on which the employee wishes the change to take effect; and a statement that the employee has / has not made a formal application in the past and, if so, when. It is helpful to include in the policy a standard form for employees to complete to ensure that all of this information is covered when they make a request. Confirmation that the employer will consider the request reasonably and what this entails. Often employers will arrange a meeting(s) with the employee to discuss the request before making any decision, ensuring that the request made is suitable for both parties. At the meetings alternative suggestions can be made and/or compromises can be reached. Confirmation that any formal request will be considered and concluded, including any appeal, within a three month period unless otherwise agreed. Details of an employee's right to be accompanied at any meeting held as part of the formal process. An employee has the right to be accompanied by a work colleague only, not a trade union representative. Confirmation that the employer will only reject a formal request for one of the eight business reasons (as set out in our recent flexible working article. Where an employer is unable to agree to an employee's request, full details of the reasons for the rejection should be set out in writing and the employee should be notified of their right of appeal. Reference to the fact that the proposed working arrangements may initially be accepted as part of a trial period, to ensure that the requested change meets both the employee's and the employer's needs. Confirmation that, subject to any trial period, where a change is accepted, it will result in a permanent variation of the employee's contract of employment and that the employee will not be able to make another request for a further 12 months from the date of the employee's recent request. Confirmation that anyone making a statutory request will not be subjected to any detrimental treatment, such as losing out on opportunities for career progression. Other points to consider ACAS has also produced both a statutory code of practice: handling in a reasonable manner requests to work flexibly and an ACAS guide: the right to request flexible working. As stated previously, employers must properly and reasonably consider all requests for flexible working, taking into account the different ways in which employees seek to work nowadays, and thinking about how such applications and a flexible workforce may benefit their business. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 11 Sep 2018 00:00:00 +0100<![CDATA[Michael Briggs Antonia Blackwell ]]><![CDATA[ In readiness for National Work Life Week from 1 - 5 October, now is the time to consider whether your flexible working policies are fit for purpose. In this article in our Breaking Down the Handbook series we highlight what such policies should cover. Background Working Families is the UK's leading work-life balance organisation. It helps working parents and carers and their employers find a better balance between responsibilities at home and work. Each year, National Work Life Week takes place to highlight the need for both employers and employees to focus on well-being at work and work-life balance (accepting that this should not just be a focus for one week of the year). Employers can use this week to provide, or even bolster, their associated activities for staff, and showcase their own approach to flexible and other work-life policies and practices. As highlighted in our recent flexible working article, working flexibly is key to maintaining a motivated and loyal workforce and is essential to attracting diverse talent. Flexible working and family leave policies are key to supporting a work-life balance. However, it is important to recognise that flexible working means many things to many different people. Some may wish to work specific hours to suit family needs, while those without family commitments may still wish to have flexibility in their working lives to suit their own personal commitments and/or other work-life priorities. Some may have certain skills which are best used at certain times of the day, week or year. The important thing for employers is to understand that everyone is different and that a set of rigid rules won't necessarily benefit their business in the long-run and this should be reflected in any policies. Both the aging and millennial workforce are clearly changing the way we all work. Flexible working policies Flexible working policies are not new, so they must be continually adapted to suit the changing needs of an employer's business alongside the expectations of their workforce. This is especially so when traditional working hours and patterns are no longer the norm and there is so much commentary and statistics in existence confirming the benefits of a flexible workforce; being good for business, the economy and society as a whole. It is therefore helpful for employers to have relevant and clear policies in place which are regularly reviewed and updated to ensure that all employees know of the approach taken by their employer in this area. Additional guidance, support and role-modelling from management are also key to the success of flexible working practices. Content of flexible working policies Any such policy should include: Eligibility requirements. Every employee has the right to request flexible working provided that they have 26 weeks' continuous employment service and have not made a formal request to work flexibly in the last 12 months. This is a statutory right, so, as a minimum, an employer should make their employees aware of it in a policy document. Many employers also allow all employees and workers to make informal requests (see below) to work flexibly where they would otherwise not be able to do so under the statutory scheme. The conditions attaching to any requests should clearly be set out in the policy. A non-exhaustive list of the various options available for flexible working. There are many options which can be considered under flexible working policies, including reduced or varied working hours, days or weeks (including part-time working, compressed hours, annualised hours or flexi-hours), change of location (including homeworking and other agile or remote working arrangements), and/or job-sharing arrangements. An informal procedure, for those who cannot make a statutory request, or for those who don't necessarily want to make a permanent variation to their working pattern. It is reasonable for the employer to set out an application and decision making procedure to be followed in these circumstances. A formal procedure setting out the way in which a formal request to work flexibly must be made, and who it should be made to. The statutory right to request procedure is actually quite complicated, especially to those who have never made one before. It involves submitting a written and dated application, which must contain prescribed information, including: confirmation that it is statutory request to work flexibly and that the employee is eligible to make a request; clear reasons for the request, whether that be for family reasons, for reasons connected to a protected characteristic or otherwise. In respect of protected characteristics, examples may include reasonable adjustments because of disability for the employee making the request or for someone they care for; as much information as possible about both the current and desired working patterns, the effect the changes will have on the work undertaken by the employee and the effect that it will have on others such as the employee's colleagues. Employees are often encouraged to set out how they believe any perceived barriers to their application can be overcome; the date on which the employee wishes the change to take effect; and a statement that the employee has / has not made a formal application in the past and, if so, when. It is helpful to include in the policy a standard form for employees to complete to ensure that all of this information is covered when they make a request. Confirmation that the employer will consider the request reasonably and what this entails. Often employers will arrange a meeting(s) with the employee to discuss the request before making any decision, ensuring that the request made is suitable for both parties. At the meetings alternative suggestions can be made and/or compromises can be reached. Confirmation that any formal request will be considered and concluded, including any appeal, within a three month period unless otherwise agreed. Details of an employee's right to be accompanied at any meeting held as part of the formal process. An employee has the right to be accompanied by a work colleague only, not a trade union representative. Confirmation that the employer will only reject a formal request for one of the eight business reasons (as set out in our recent flexible working article. Where an employer is unable to agree to an employee's request, full details of the reasons for the rejection should be set out in writing and the employee should be notified of their right of appeal. Reference to the fact that the proposed working arrangements may initially be accepted as part of a trial period, to ensure that the requested change meets both the employee's and the employer's needs. Confirmation that, subject to any trial period, where a change is accepted, it will result in a permanent variation of the employee's contract of employment and that the employee will not be able to make another request for a further 12 months from the date of the employee's recent request. Confirmation that anyone making a statutory request will not be subjected to any detrimental treatment, such as losing out on opportunities for career progression. Other points to consider ACAS has also produced both a statutory code of practice: handling in a reasonable manner requests to work flexibly and an ACAS guide: the right to request flexible working. As stated previously, employers must properly and reasonably consider all requests for flexible working, taking into account the different ways in which employees seek to work nowadays, and thinking about how such applications and a flexible workforce may benefit their business. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{E40AE317-87B2-4248-9012-C7265AF97534}https://www.shoosmiths.co.uk/client-resources/legal-updates/action-stations-everyone-lgbt-action-plan-is-here-or-is-it-14588.aspxAction stations everyone! The LGBT Action Plan is here - or is it? While there have been many positive responses given by Lesbian, Gay, Bisexual and Transgender (LGBT) people in relation to experiences at work, a recent survey confirms there is more still to be done. The question is, are the current plans enough to make a difference? Background Back in July 2017, recognising that LGBT people face barriers to full participation in public life, the Government Equalities Office (GEO) launched the largest national survey of LGBT people ever conducted. The aim of the survey was to strip away the barriers that LGBT people face so that everyone can go as far as their hard work and talent can take them, regardless of sexual orientation or identity. The survey asked a number of questions about LGBT people's experiences of living in the UK, including in the areas of personal safety, healthcare, education and employment. While the results of the survey confirmed a number of positive responses, particularly regarding the United Kingdom's own good record on progressing LGBT rights, there were still a number of concerning findings, including: more than two thirds of LGBT respondents said they had avoided holding hands with a same-sex partner for fear of a negative reaction; approximately two in five respondents had experienced an incident because they were LGBT, such as verbal harassment or physical violence; discrimination, harassment and bullying disproportionately affects LGBT people when compared to heterosexuals and continues to be an issue in the workplace; 11%of LGBT people had experienced a negative reaction in the workplace due to someone else disclosing that they were LGBT, without their permission. 9% had received a negative reaction in the workplace as a result of inappropriate comments or conduct; and that where a serious incident had been experienced at work, 77% of the respondents involved had chosen not to report it, largely because they thought nothing would happen or change. As a result of the survey, in July 2018, the GEO published its LGBT Action Plan: Improving the Lives of Lesbian, Gay, Bisexual and Transgender People to push forward the government's agenda in this area. From an employment and HR perspective, the action plan seeks to ensure that: LGBT people can be themselves in the workplace so they can do their best work and get on in life; employers will be provided with free training materials to support inclusion and tackle discrimination in the workplace; action is taken on sexual harassment in the workplace, with a particular emphasis that LGBT harassment is included within equal opportunities and/or anti-sexual harassment policies and guidance issued by ACAS; a working group of employers is convened to progress LGBT equality at work, and to develop targeted interventions to improve the experiences that LGBT people have at work at all times; and the Civil Service Diversity and Inclusion Strategy is reviewed to strengthen how bullying, harassment and misconduct is tackled in the workplace, and for private employers to use this as a best practice guide. The question that remains, though, is when and how will LGBT people actually see the benefit of the action plan? Well, the action plan is certainly a good starting point. Progress has definitely been made since the late 90s, with greater workplace protection being afforded to LGBT people. With this action plan, the GEO further commits itself to tackle the continued issues that LGBT people face in the workplace, and in society generally, before the end of this Parliament. There is allocated funding available until March 2020 and it is hoped that additional information will soon follow to give this action plan the detail and commitment that it deserves. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Mon, 03 Sep 2018 00:00:00 +0100<![CDATA[Michael Briggs Antonia Blackwell ]]><![CDATA[ While there have been many positive responses given by Lesbian, Gay, Bisexual and Transgender (LGBT) people in relation to experiences at work, a recent survey confirms there is more still to be done. The question is, are the current plans enough to make a difference? Background Back in July 2017, recognising that LGBT people face barriers to full participation in public life, the Government Equalities Office (GEO) launched the largest national survey of LGBT people ever conducted. The aim of the survey was to strip away the barriers that LGBT people face so that everyone can go as far as their hard work and talent can take them, regardless of sexual orientation or identity. The survey asked a number of questions about LGBT people's experiences of living in the UK, including in the areas of personal safety, healthcare, education and employment. While the results of the survey confirmed a number of positive responses, particularly regarding the United Kingdom's own good record on progressing LGBT rights, there were still a number of concerning findings, including: more than two thirds of LGBT respondents said they had avoided holding hands with a same-sex partner for fear of a negative reaction; approximately two in five respondents had experienced an incident because they were LGBT, such as verbal harassment or physical violence; discrimination, harassment and bullying disproportionately affects LGBT people when compared to heterosexuals and continues to be an issue in the workplace; 11%of LGBT people had experienced a negative reaction in the workplace due to someone else disclosing that they were LGBT, without their permission. 9% had received a negative reaction in the workplace as a result of inappropriate comments or conduct; and that where a serious incident had been experienced at work, 77% of the respondents involved had chosen not to report it, largely because they thought nothing would happen or change. As a result of the survey, in July 2018, the GEO published its LGBT Action Plan: Improving the Lives of Lesbian, Gay, Bisexual and Transgender People to push forward the government's agenda in this area. From an employment and HR perspective, the action plan seeks to ensure that: LGBT people can be themselves in the workplace so they can do their best work and get on in life; employers will be provided with free training materials to support inclusion and tackle discrimination in the workplace; action is taken on sexual harassment in the workplace, with a particular emphasis that LGBT harassment is included within equal opportunities and/or anti-sexual harassment policies and guidance issued by ACAS; a working group of employers is convened to progress LGBT equality at work, and to develop targeted interventions to improve the experiences that LGBT people have at work at all times; and the Civil Service Diversity and Inclusion Strategy is reviewed to strengthen how bullying, harassment and misconduct is tackled in the workplace, and for private employers to use this as a best practice guide. The question that remains, though, is when and how will LGBT people actually see the benefit of the action plan? Well, the action plan is certainly a good starting point. Progress has definitely been made since the late 90s, with greater workplace protection being afforded to LGBT people. With this action plan, the GEO further commits itself to tackle the continued issues that LGBT people face in the workplace, and in society generally, before the end of this Parliament. There is allocated funding available until March 2020 and it is hoped that additional information will soon follow to give this action plan the detail and commitment that it deserves. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{8538DB77-A44D-45DA-B79F-5997DA00E618}https://www.shoosmiths.co.uk/client-resources/legal-updates/the-continued-spotlight-on-flexible-working-14574.aspxThe continued spotlight on flexible working According to a survey, only 6% of employees are working the traditional 9-to-5, and only a small percentage of those entering new employment would opt for those working hours. YouGov survey Options for working flexibly clearly remain key to a motivated and loyal workforce, and are essential to attracting talent - especially with an increasing millennial workforce and rapid advances in technology. The recent YouGov survey, which was commissioned by fast-food chain McDonald's, has found that just 6% of employees work between the traditional hours of 9am and 5pm. The results suggest that, of the 4,000 people surveyed, almost half already worked flexibly with arrangements such as job sharing, reduced hours, compressed hours or amended hours in place. 70% expressed a desire to work flexibly in the future. Most of the people surveyed also confirmed they would prefer to start the working day earlier, so they could leave earlier to balance their family and other commitments. 37% confirmed that the preferred working hours were between 8am and 4pm, all of which continues to indicate that the concepts of work-life balance and wellbeing remain high on everyone's agenda, both in relation to their existing employment arrangements and when seeking new opportunities. Others confirmed they would prefer to work a longer day in order to work a shorter week. Having autonomy to work in a way which best suits the employee, and the employer, is clearly a road that needs to be followed here, where operationally possible, as further research suggests that such workforces are more productive. Flexible working Every employee has the right to request flexible working, provided that they have 26 weeks' continuous employment service. There is no longer the need for the employee making a request to work flexibly to do so in order to care for a child or to be a carer of an adult. There is also no set procedure in dealing with a request. The law simply states that an application for flexible working, made by an eligible employee, must be dealt with in a reasonable manner, and within a period of three months (which includes any appeal). The change in legislation in June 2014 has undoubtedly increased the number of applications for flexible working made, but perhaps not as much as expected. Options for flexible working, for whatever reason, could include requests for: a reduction in working hours (working part-time hours or reduced hours); a change in working pattern (varying the core hours worked, which could include compressed hours, a nine-day fortnight, term-time working or annualised hours); or a change in working location (home or remote working, or other agile working arrangements). The uptake of flexible working Despite all of the options available for flexible working, and the extended statutory right for employees to request to work flexibly since June 2014, a third of those surveyed believed that their current employer would not allow them to work flexibly. In response to the survey, Peter Cheese, chief executive of the CIPD, said that employers willing to offer flexible working would attract a higher number of applicants, but agreed the uptake of flexible working was still low. Of course, when refusing an application for flexible working, employers must have a sound business reason for doing so. Their reason must fall into one or more of the eight statutory reasons: the burden of additional costs; detrimental effect on ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the periods the employee proposes to work; and/or planned structural changes. Grounds for refusal such as 'it will open the floodgates to more requests' will simply not suffice. Such a response to female employees also runs the risk of claims of indirect sex discrimination which can be very costly to defend, both financially and from a reputation perspective. Going forward Flexible working is no longer seen as a'nice to have. Employers must properly and reasonably consider all requests for flexible working, taking into account the different ways in which employees seek to work nowadays, and thinking about how such applications and a flexible workforce may benefit their business. Some top tips for dealing with applications for flexible working include: dealing with requests in a reasonable manner (the ACAS Code of Practice provides useful guidance on what that looks like); encourage the applicant to consider the impact their request will have on their colleagues. Tensions can often arise where others feel they have to pick up the slack; ensuring that any reasons for refusing the request, if applicable, fall within at least one of the specified reasons; keeping an open mind and challenge any policy that particular roles can only ever be done on a full-time basis; if there are genuine business reasons why flexible working is not feasible, make sure these are properly evidenced and documented and not just based on the personal preference of managers; note that an argument that 'we already have too many people who work part-time/from home etc.' is not one of the permitted grounds for refusing a request; consider whether a trial period could be offered to settle any concerns about the requested working pattern; even if you can't offer the exact changes requested, think creatively and see if you can suggest a compromise; remember that the right to request is available to all employees, not just working mothers or those with caring responsibilities. Research suggests that childless employees, whether male or female, feel that options for flexible working are biased towards those with children, making their own desires for a work-life balance a distant dream; and bear in mind the risk of indirect sex discrimination, and other possible claims of discrimination, at all stages of the process. Properly consider all employee commitments outside of work where appropriate, including religious commitments, or an employee's own medical position or of someone they care for. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Thu, 23 Aug 2018 00:00:00 +0100<![CDATA[Michael Briggs Helen Burgess ]]><![CDATA[ According to a survey, only 6% of employees are working the traditional 9-to-5, and only a small percentage of those entering new employment would opt for those working hours. YouGov survey Options for working flexibly clearly remain key to a motivated and loyal workforce, and are essential to attracting talent - especially with an increasing millennial workforce and rapid advances in technology. The recent YouGov survey, which was commissioned by fast-food chain McDonald's, has found that just 6% of employees work between the traditional hours of 9am and 5pm. The results suggest that, of the 4,000 people surveyed, almost half already worked flexibly with arrangements such as job sharing, reduced hours, compressed hours or amended hours in place. 70% expressed a desire to work flexibly in the future. Most of the people surveyed also confirmed they would prefer to start the working day earlier, so they could leave earlier to balance their family and other commitments. 37% confirmed that the preferred working hours were between 8am and 4pm, all of which continues to indicate that the concepts of work-life balance and wellbeing remain high on everyone's agenda, both in relation to their existing employment arrangements and when seeking new opportunities. Others confirmed they would prefer to work a longer day in order to work a shorter week. Having autonomy to work in a way which best suits the employee, and the employer, is clearly a road that needs to be followed here, where operationally possible, as further research suggests that such workforces are more productive. Flexible working Every employee has the right to request flexible working, provided that they have 26 weeks' continuous employment service. There is no longer the need for the employee making a request to work flexibly to do so in order to care for a child or to be a carer of an adult. There is also no set procedure in dealing with a request. The law simply states that an application for flexible working, made by an eligible employee, must be dealt with in a reasonable manner, and within a period of three months (which includes any appeal). The change in legislation in June 2014 has undoubtedly increased the number of applications for flexible working made, but perhaps not as much as expected. Options for flexible working, for whatever reason, could include requests for: a reduction in working hours (working part-time hours or reduced hours); a change in working pattern (varying the core hours worked, which could include compressed hours, a nine-day fortnight, term-time working or annualised hours); or a change in working location (home or remote working, or other agile working arrangements). The uptake of flexible working Despite all of the options available for flexible working, and the extended statutory right for employees to request to work flexibly since June 2014, a third of those surveyed believed that their current employer would not allow them to work flexibly. In response to the survey, Peter Cheese, chief executive of the CIPD, said that employers willing to offer flexible working would attract a higher number of applicants, but agreed the uptake of flexible working was still low. Of course, when refusing an application for flexible working, employers must have a sound business reason for doing so. Their reason must fall into one or more of the eight statutory reasons: the burden of additional costs; detrimental effect on ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the periods the employee proposes to work; and/or planned structural changes. Grounds for refusal such as 'it will open the floodgates to more requests' will simply not suffice. Such a response to female employees also runs the risk of claims of indirect sex discrimination which can be very costly to defend, both financially and from a reputation perspective. Going forward Flexible working is no longer seen as a'nice to have. Employers must properly and reasonably consider all requests for flexible working, taking into account the different ways in which employees seek to work nowadays, and thinking about how such applications and a flexible workforce may benefit their business. Some top tips for dealing with applications for flexible working include: dealing with requests in a reasonable manner (the ACAS Code of Practice provides useful guidance on what that looks like); encourage the applicant to consider the impact their request will have on their colleagues. Tensions can often arise where others feel they have to pick up the slack; ensuring that any reasons for refusing the request, if applicable, fall within at least one of the specified reasons; keeping an open mind and challenge any policy that particular roles can only ever be done on a full-time basis; if there are genuine business reasons why flexible working is not feasible, make sure these are properly evidenced and documented and not just based on the personal preference of managers; note that an argument that 'we already have too many people who work part-time/from home etc.' is not one of the permitted grounds for refusing a request; consider whether a trial period could be offered to settle any concerns about the requested working pattern; even if you can't offer the exact changes requested, think creatively and see if you can suggest a compromise; remember that the right to request is available to all employees, not just working mothers or those with caring responsibilities. Research suggests that childless employees, whether male or female, feel that options for flexible working are biased towards those with children, making their own desires for a work-life balance a distant dream; and bear in mind the risk of indirect sex discrimination, and other possible claims of discrimination, at all stages of the process. Properly consider all employee commitments outside of work where appropriate, including religious commitments, or an employee's own medical position or of someone they care for. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{0912FD8B-CBF5-4D40-86BC-6461A033936A}https://www.shoosmiths.co.uk/client-resources/legal-updates/capability-procedures-explained-14526.aspxCapability procedures explained This month, in our Breaking Down the Handbook series, we look at capability policies and why they are a useful tool for employers to have when it comes to dealing with poor performance. The need for a written procedure Dealing with poor performers is often the area which managers find most challenging. Addressing matters of performance can also be concerning and stressful for the individual employee being taken through the process. It is therefore helpful if employers can have a comprehensive capability procedure both to ensure that employees know what to expect and to provide managers with appropriate guidance and support. Having a clear, fair and reasonable procedure in place will also assist employers to avoid claims of unfair dismissal (and more) - providing it is followed! Employers often debate whether to include capability issues within an existing disciplinary policy or whether to separate these out into a stand-alone capability procedure. There is no right or wrong answer to this question. Both the Employment Rights Act 1996 and the ACAS Code of Practice confirm that employers should have in place written disciplinary procedures for disciplinary decisions (which include warnings or other sanctions for poor performance) or disciplinary situations (which include poor performance issues), and so it is possible to simply incorporate performance management within the disciplinary process. However, many employers feel that the language and tone of a disciplinary process is not appropriate for a performance situation, where there is no deliberate failing on the part of the employee and where the employer's approach is one of support rather than blame. As a result, many employers feel that a separate capability procedure is the best approach to take. Aims of the procedure The primary aims of an employer's capability procedure should be to: provide a clear framework setting out required performance standards; encourage improvement where necessary and address any root causes of poor performance; establish a mechanism for dealing with any initial performance concerns on an informal basis; have in place a formal procedure for dealing with any significant performance concerns or where previous informal discussions have not led to the required improvement. What should be included in an employer's capability procedure Generally, a capability procedure should cover the following: 1. An informal process Best practice suggests that initial performance concerns should be addressed on an informal basis where appropriate, which may include an employer's annual appraisal system, regular one-to-one meetings or such other informal discussions as necessary. These can be used to: identify areas of concern at an early stage; clarify the standards required; establish and address any likely causes of poor performance; identify any training needs or other support; and set expectations for improvement. 2. The need to carry out a reasonable investigation The ACAS Code of Practice states that before embarking on a formal capability process an employer should carry out an investigation, which should include speaking to the employee and giving them the opportunity to comment on any evidence which highlights performance concerns. Accurately documented performance appraisals or previous informal discussions which have attempted to address concerns will assist with this process so it is advisable to keep a written log of any previous informal discussions. An investigation may also reveal underlying reasons for the performance concerns, which an employer will need to consider before deciding whether it is appropriate to take any further steps to address those concerns. For example, any issues which are caused by the employer's failure to provide training and/or support may be resolved by the provision of such training / support. Similarly, any indications of ill-health or physical impairment should be investigated further in case the employer needs to consider making any adjustments to enable the employee to reach the required standard. 3. The need to hold a formal meeting(s) If there is no underlying reason or obvious explanation for the performance issues, and an informal process hasn't led to the required standards being achieved, a formal procedure should be followed and a capability meeting arranged. It is important that the employee is provided with the with detail of any shortcomings in their performance prior to the meeting, together with a summary of the information which has been considered and any relevant documents which support the concerns raised. A key part of any process is also to warn the employee of the possible consequences if their performance is found to have fallen short of the required standard. At the meeting, both employer and employee should explain their case and explore the cause of the underperformance as well as determining what, if any, remedial action can be taken. An accurate note of the discussions should be kept. If underperformance is established then a formal capability warning (discussed below) should be issued, and the employee should be notified in writing of the outcome of the meeting and their right of appeal. 4. The right to be accompanied Employees do not have the right to be accompanied at any investigatory meeting, but they do have the right to be accompanied at any formal capability meeting that could result in a capability warning being issued. 5. The need to give the employee the chance to improve Where underperformance is established, clear and reasonable objectives should be set for the employee to achieve within a reasonable timeframe and the employee should be warned about what will happen if those objectives are not met. How much time needs to be given to the employee to achieve the set objectives will depend on the circumstances and the role in question. 6. An acknowledgment that training and/or support may be available As well as setting objectives, an employer should also offer appropriate support to help the employee to meet the required standards of performance. This could include training, regular monitoring of the employee's performance, additional supervision or providing extra resources to assist the employee. 7. A system of review It is important that employers properly review and document an employee's performance once objectives have been set. Review dates for improvement should therefore be diarised and regular monitoring should take place in between these dates. 8. A system of warnings before dismissal Given that employees need to be given the chance to improve, a system of warnings should be used. The ACAS Code of Practice recommends that employees should be given at least one chance to improve before the issue of a final written warning. The warning system within a capability procedure is therefore similar to that within an employer's disciplinary procedure, i.e. written warning, final written warning, dismissal (on notice). However, as mentioned above, many employers prefer to use different terminology in a capability context, perhaps using the term 'improvement notice' rather than 'warning'. 9. The need to consider alternatives to dismissal Whilst there is no absolute obligation on an employer to consider alternative employment or demotion before taking the decision to dismiss for capability reasons, it may be unreasonable not to do so depending on the size and administrative resources of the employer. 10. An appeal procedure The ACAS Code of Practice requires a right of appeal to be given against any disciplinary action, including capability warnings and any subsequent dismissal for capability reasons. An employee's appeal should be made in writing, include their grounds of appeal, and generally be made within 5 working days of the warning or notice of dismissal being issued. Training for managers in this area is also crucial to ensure that matters of performance are dealt with consistently and fairly and in such a way so as to avoid possible employment tribunal claims being made against the employer. Next time Next month we will be focusing on the need to have clear and effective flexible working and family leave policies in place. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Fri, 10 Aug 2018 00:00:00 +0100<![CDATA[Michael Briggs Antonia Blackwell ]]><![CDATA[ This month, in our Breaking Down the Handbook series, we look at capability policies and why they are a useful tool for employers to have when it comes to dealing with poor performance. The need for a written procedure Dealing with poor performers is often the area which managers find most challenging. Addressing matters of performance can also be concerning and stressful for the individual employee being taken through the process. It is therefore helpful if employers can have a comprehensive capability procedure both to ensure that employees know what to expect and to provide managers with appropriate guidance and support. Having a clear, fair and reasonable procedure in place will also assist employers to avoid claims of unfair dismissal (and more) - providing it is followed! Employers often debate whether to include capability issues within an existing disciplinary policy or whether to separate these out into a stand-alone capability procedure. There is no right or wrong answer to this question. Both the Employment Rights Act 1996 and the ACAS Code of Practice confirm that employers should have in place written disciplinary procedures for disciplinary decisions (which include warnings or other sanctions for poor performance) or disciplinary situations (which include poor performance issues), and so it is possible to simply incorporate performance management within the disciplinary process. However, many employers feel that the language and tone of a disciplinary process is not appropriate for a performance situation, where there is no deliberate failing on the part of the employee and where the employer's approach is one of support rather than blame. As a result, many employers feel that a separate capability procedure is the best approach to take. Aims of the procedure The primary aims of an employer's capability procedure should be to: provide a clear framework setting out required performance standards; encourage improvement where necessary and address any root causes of poor performance; establish a mechanism for dealing with any initial performance concerns on an informal basis; have in place a formal procedure for dealing with any significant performance concerns or where previous informal discussions have not led to the required improvement. What should be included in an employer's capability procedure Generally, a capability procedure should cover the following: 1. An informal process Best practice suggests that initial performance concerns should be addressed on an informal basis where appropriate, which may include an employer's annual appraisal system, regular one-to-one meetings or such other informal discussions as necessary. These can be used to: identify areas of concern at an early stage; clarify the standards required; establish and address any likely causes of poor performance; identify any training needs or other support; and set expectations for improvement. 2. The need to carry out a reasonable investigation The ACAS Code of Practice states that before embarking on a formal capability process an employer should carry out an investigation, which should include speaking to the employee and giving them the opportunity to comment on any evidence which highlights performance concerns. Accurately documented performance appraisals or previous informal discussions which have attempted to address concerns will assist with this process so it is advisable to keep a written log of any previous informal discussions. An investigation may also reveal underlying reasons for the performance concerns, which an employer will need to consider before deciding whether it is appropriate to take any further steps to address those concerns. For example, any issues which are caused by the employer's failure to provide training and/or support may be resolved by the provision of such training / support. Similarly, any indications of ill-health or physical impairment should be investigated further in case the employer needs to consider making any adjustments to enable the employee to reach the required standard. 3. The need to hold a formal meeting(s) If there is no underlying reason or obvious explanation for the performance issues, and an informal process hasn't led to the required standards being achieved, a formal procedure should be followed and a capability meeting arranged. It is important that the employee is provided with the with detail of any shortcomings in their performance prior to the meeting, together with a summary of the information which has been considered and any relevant documents which support the concerns raised. A key part of any process is also to warn the employee of the possible consequences if their performance is found to have fallen short of the required standard. At the meeting, both employer and employee should explain their case and explore the cause of the underperformance as well as determining what, if any, remedial action can be taken. An accurate note of the discussions should be kept. If underperformance is established then a formal capability warning (discussed below) should be issued, and the employee should be notified in writing of the outcome of the meeting and their right of appeal. 4. The right to be accompanied Employees do not have the right to be accompanied at any investigatory meeting, but they do have the right to be accompanied at any formal capability meeting that could result in a capability warning being issued. 5. The need to give the employee the chance to improve Where underperformance is established, clear and reasonable objectives should be set for the employee to achieve within a reasonable timeframe and the employee should be warned about what will happen if those objectives are not met. How much time needs to be given to the employee to achieve the set objectives will depend on the circumstances and the role in question. 6. An acknowledgment that training and/or support may be available As well as setting objectives, an employer should also offer appropriate support to help the employee to meet the required standards of performance. This could include training, regular monitoring of the employee's performance, additional supervision or providing extra resources to assist the employee. 7. A system of review It is important that employers properly review and document an employee's performance once objectives have been set. Review dates for improvement should therefore be diarised and regular monitoring should take place in between these dates. 8. A system of warnings before dismissal Given that employees need to be given the chance to improve, a system of warnings should be used. The ACAS Code of Practice recommends that employees should be given at least one chance to improve before the issue of a final written warning. The warning system within a capability procedure is therefore similar to that within an employer's disciplinary procedure, i.e. written warning, final written warning, dismissal (on notice). However, as mentioned above, many employers prefer to use different terminology in a capability context, perhaps using the term 'improvement notice' rather than 'warning'. 9. The need to consider alternatives to dismissal Whilst there is no absolute obligation on an employer to consider alternative employment or demotion before taking the decision to dismiss for capability reasons, it may be unreasonable not to do so depending on the size and administrative resources of the employer. 10. An appeal procedure The ACAS Code of Practice requires a right of appeal to be given against any disciplinary action, including capability warnings and any subsequent dismissal for capability reasons. An employee's appeal should be made in writing, include their grounds of appeal, and generally be made within 5 working days of the warning or notice of dismissal being issued. Training for managers in this area is also crucial to ensure that matters of performance are dealt with consistently and fairly and in such a way so as to avoid possible employment tribunal claims being made against the employer. Next time Next month we will be focusing on the need to have clear and effective flexible working and family leave policies in place. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{6D1FF03D-93E0-47BE-AFF6-62C6D079129E}https://www.shoosmiths.co.uk/client-resources/legal-updates/sponsorship-management-tips-licence-holders-part-two-14520.aspxSponsorship Management System: top tips for sponsor licence holders - part two In this second of two articles I'm going to share with you, as employers of sponsored migrant workers, five more pearls of wisdom that may have passed you by or that may just serve as a useful reminder to you. Pearl 6 - Have you had a judgment against you in a Tribunal? If so, this finding could impact your licence One of the conditions of being able to hold a licence is that as an employer, you comply with UK employment law: para 15.12 of the guidance for sponsors: https://www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers A discrimination judgment, a finding that your organisation has failed to pay the National Minimum Wage, a decision that you have failed to pay the correct holiday pay, etc. may impact your ability to retain your licence. It is therefore worth factoring in to any discussions regarding whether to settle a claim so that you do not inadvertently fall foul of this obligation. Pearl 7 - As the Immigration Skills Charge ('ISC') is payable in advance, you may wish to reduce the length of the migrant's initial Certificate of Sponsorship ('CoS') The ISC was introduced in April 2017. In general, it is payable when a sponsor assigns a CoS to either a Tier 2 (General) or (Intra-Company Transfer) Migrant and the migrant will be applying for leave to enter the UK for 6 months or more. The charge is still payable for leave to remain applications (i.e. extensions) when the migrant will be applying for less than 6 months. The current charge is £1,000 per annum so if you assign a 3-year CoS it will cost you £3,000. You will be able to recover some of that cost if the worker doesn't work out and you terminate employment early, for example. However, the refund will take time (at least 90 days) and given that the Immigration Health Surcharge refunds have been delayed a refund is unlikely to be swift. You could therefore request a one or two year CoS and then request a further CoS if the employee proves suitable which will potentially help your cash flow. The cost of a CoS is currently £199 so much less than the ISC. Pearl 8 - Beware of Standard Occupational Classification ('SOC') code 3545 The SOC code is used to assess the correct skill level and appropriate salary level for specific job roles. Employers are required to select the SOC code that most closely matches the job description they are looking to sponsor a migrant worker for in order to assign a CoS. It is always advisable to look at the SOC code at the outset and make sure the job advert reflects the SOC code. This will involve HR speaking to managers to understand exactly what the role entails. SOC code 3545 is for sales accounts and business development managers and is often seen by employers as the catch all code when a role doesn't neatly fit within any other code. However, UKVI has become quite tough on this code as they believe it has been abused in the past. That isn't to say that this code cannot be used if it is the most appropriate but you would be well advised to do so if possible. If you are in any doubt as to which SOC code to use we can help you pin down the applicable code. Pearl 9 - Amend your due diligence process when acquiring a business or company If you are involved in a transaction where your organisation is acquiring another you should ask for certain information related to all sponsored migrant workers. This will include job adverts placed when the role was first advertised (to ensure the adverts met the requirements), recruitment records (which illustrate that the migrant was the best person for the job), personnel records (to show that the seller complied with its record keeping and reporting duties), etc. This is important in respect of all types of acquisitions, including TUPE acquisitions as even though you would not be responsible for any of the transferor's/seller's breaches, if you discover any issues after acquisition you will have to deal with them and potentially report to UKVI. Pearl 10 - Before you renew your licence or before an announced UKVI visit, audit your procedures, policies and paperwork to ensure your house is in order Renewal of your licence is the perfect opportunity to re check everything to make sure that you have up to date and compliant policies in place, that they are rigorously followed and that all migrant workers' information and records are up to date. If you spot anything you can then remedy it or if necessary, report any issues to UKVI. If you have notice of a visit from UKVI you can do the same. Reporting any issues to UKVI before they spot them will go a long way in helping you renew or retain your licence, especially where you have a thorough action plan to remedy the issue (or even better, you have remedied it already) and prevent any future occurrences. This concludes my two-part pearls of wisdom series on the SMS. I hope you found it useful. If so, and if you would like us to cover any other business-immigration topics, please let me know. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 08 Aug 2018 00:00:00 +0100<![CDATA[Helen Burgess ]]><![CDATA[ In this second of two articles I'm going to share with you, as employers of sponsored migrant workers, five more pearls of wisdom that may have passed you by or that may just serve as a useful reminder to you. Pearl 6 - Have you had a judgment against you in a Tribunal? If so, this finding could impact your licence One of the conditions of being able to hold a licence is that as an employer, you comply with UK employment law: para 15.12 of the guidance for sponsors: https://www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers A discrimination judgment, a finding that your organisation has failed to pay the National Minimum Wage, a decision that you have failed to pay the correct holiday pay, etc. may impact your ability to retain your licence. It is therefore worth factoring in to any discussions regarding whether to settle a claim so that you do not inadvertently fall foul of this obligation. Pearl 7 - As the Immigration Skills Charge ('ISC') is payable in advance, you may wish to reduce the length of the migrant's initial Certificate of Sponsorship ('CoS') The ISC was introduced in April 2017. In general, it is payable when a sponsor assigns a CoS to either a Tier 2 (General) or (Intra-Company Transfer) Migrant and the migrant will be applying for leave to enter the UK for 6 months or more. The charge is still payable for leave to remain applications (i.e. extensions) when the migrant will be applying for less than 6 months. The current charge is £1,000 per annum so if you assign a 3-year CoS it will cost you £3,000. You will be able to recover some of that cost if the worker doesn't work out and you terminate employment early, for example. However, the refund will take time (at least 90 days) and given that the Immigration Health Surcharge refunds have been delayed a refund is unlikely to be swift. You could therefore request a one or two year CoS and then request a further CoS if the employee proves suitable which will potentially help your cash flow. The cost of a CoS is currently £199 so much less than the ISC. Pearl 8 - Beware of Standard Occupational Classification ('SOC') code 3545 The SOC code is used to assess the correct skill level and appropriate salary level for specific job roles. Employers are required to select the SOC code that most closely matches the job description they are looking to sponsor a migrant worker for in order to assign a CoS. It is always advisable to look at the SOC code at the outset and make sure the job advert reflects the SOC code. This will involve HR speaking to managers to understand exactly what the role entails. SOC code 3545 is for sales accounts and business development managers and is often seen by employers as the catch all code when a role doesn't neatly fit within any other code. However, UKVI has become quite tough on this code as they believe it has been abused in the past. That isn't to say that this code cannot be used if it is the most appropriate but you would be well advised to do so if possible. If you are in any doubt as to which SOC code to use we can help you pin down the applicable code. Pearl 9 - Amend your due diligence process when acquiring a business or company If you are involved in a transaction where your organisation is acquiring another you should ask for certain information related to all sponsored migrant workers. This will include job adverts placed when the role was first advertised (to ensure the adverts met the requirements), recruitment records (which illustrate that the migrant was the best person for the job), personnel records (to show that the seller complied with its record keeping and reporting duties), etc. This is important in respect of all types of acquisitions, including TUPE acquisitions as even though you would not be responsible for any of the transferor's/seller's breaches, if you discover any issues after acquisition you will have to deal with them and potentially report to UKVI. Pearl 10 - Before you renew your licence or before an announced UKVI visit, audit your procedures, policies and paperwork to ensure your house is in order Renewal of your licence is the perfect opportunity to re check everything to make sure that you have up to date and compliant policies in place, that they are rigorously followed and that all migrant workers' information and records are up to date. If you spot anything you can then remedy it or if necessary, report any issues to UKVI. If you have notice of a visit from UKVI you can do the same. Reporting any issues to UKVI before they spot them will go a long way in helping you renew or retain your licence, especially where you have a thorough action plan to remedy the issue (or even better, you have remedied it already) and prevent any future occurrences. This concludes my two-part pearls of wisdom series on the SMS. I hope you found it useful. If so, and if you would like us to cover any other business-immigration topics, please let me know. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{A7946722-BB08-408C-9C85-600566F0CA74}https://www.shoosmiths.co.uk/client-resources/legal-updates/sports-clubs-playing-fair-with-national-minimum-wage-14482.aspxSports clubs: playing fair with national minimum wage Every few months, the government releases a list of employers who have failed to pay their employees the national minimum wage (NMW). The most recent round of naming and shaming has revealed that no less than ten professional sports clubs have fallen foul of the NMW legislation - and this isn't a new trend. Previous lists have demonstrated a clear intention by HMRC to shine a spotlight on any clubs considered to be short-changing employees. It is worth noting that the majority of employers are not intentional culprits when it comes to NMW violations. Rather, it is the various complexities in the legislation that tend to catch employers out, particularly in the case of atypical working arrangements. And it isn't just smaller clubs which experience issues; many of the employers named and shamed are established household names. Bristol City Football Club, which features on the latest list, has explained that its inclusion is due to a failure to pay some of its academy players for travel time to away fixtures. Other clubs previously named and shamed, such as St Helen's rugby club, have cited misunderstandings regarding the payment of casual staff, including participation in training sessions, as the reason for their failures. There are also those employers who seek to implement initiatives for staff which inadvertently breach the NMW provisions. Stoke City Football Club was one such employer named and shamed by the government earlier this year. The club explained that their issue related to deductions from employees' pay for items (such as merchandise and tickets) purchased from the club. In the event that employees had paid cash directly for these items, there would not have been an issue; it was the practice of making deductions that led to employees' pay falling below the NMW threshold. With all of these factors in play, it is easy to see how mistakes can creep in. With the significant potential for reputational damage and fines (and criminal lability in the most serious cases), clubs would be wise to review this area as a priority. HMRC's current enforcement strategy states that it will not allow self-correction once it has contacted an employer to initiate an investigation. There are, however, proactive steps which clubs can take to audit their pay practices and reduce the likelihood of any breaches, before HMRC comes calling. The following are key areas which it would be useful for a club NMW pay audit to address: Types of workers - are academy players, casual workers and other atypical staff being paid consistently and correctly? Pay records - are these comprehensive enough and do they reflect the different rates payable to individual members of staff, including the national living wage? Reference period - are rates of pay, when calculated by reference to the correct pay reference period (for example, monthly or weekly), NMW compliant? Working time - is this being assessed correctly to include things like travel time? Deductions - do any practices around deductions run the risk of NMW breaches? We are able to provide tailored advice and support in relation to all aspects of NMW compliance and pay audits. If you would like to explore this further, then please do not hesitate to contact us. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 01 Aug 2018 00:00:00 +0100<![CDATA[Danielle Ingham ]]><![CDATA[ Every few months, the government releases a list of employers who have failed to pay their employees the national minimum wage (NMW). The most recent round of naming and shaming has revealed that no less than ten professional sports clubs have fallen foul of the NMW legislation - and this isn't a new trend. Previous lists have demonstrated a clear intention by HMRC to shine a spotlight on any clubs considered to be short-changing employees. It is worth noting that the majority of employers are not intentional culprits when it comes to NMW violations. Rather, it is the various complexities in the legislation that tend to catch employers out, particularly in the case of atypical working arrangements. And it isn't just smaller clubs which experience issues; many of the employers named and shamed are established household names. Bristol City Football Club, which features on the latest list, has explained that its inclusion is due to a failure to pay some of its academy players for travel time to away fixtures. Other clubs previously named and shamed, such as St Helen's rugby club, have cited misunderstandings regarding the payment of casual staff, including participation in training sessions, as the reason for their failures. There are also those employers who seek to implement initiatives for staff which inadvertently breach the NMW provisions. Stoke City Football Club was one such employer named and shamed by the government earlier this year. The club explained that their issue related to deductions from employees' pay for items (such as merchandise and tickets) purchased from the club. In the event that employees had paid cash directly for these items, there would not have been an issue; it was the practice of making deductions that led to employees' pay falling below the NMW threshold. With all of these factors in play, it is easy to see how mistakes can creep in. With the significant potential for reputational damage and fines (and criminal lability in the most serious cases), clubs would be wise to review this area as a priority. HMRC's current enforcement strategy states that it will not allow self-correction once it has contacted an employer to initiate an investigation. There are, however, proactive steps which clubs can take to audit their pay practices and reduce the likelihood of any breaches, before HMRC comes calling. The following are key areas which it would be useful for a club NMW pay audit to address: Types of workers - are academy players, casual workers and other atypical staff being paid consistently and correctly? Pay records - are these comprehensive enough and do they reflect the different rates payable to individual members of staff, including the national living wage? Reference period - are rates of pay, when calculated by reference to the correct pay reference period (for example, monthly or weekly), NMW compliant? Working time - is this being assessed correctly to include things like travel time? Deductions - do any practices around deductions run the risk of NMW breaches? We are able to provide tailored advice and support in relation to all aspects of NMW compliance and pay audits. If you would like to explore this further, then please do not hesitate to contact us. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{7B3C42A9-B668-45AB-A6E3-27EBC5D3568C}https://www.shoosmiths.co.uk/client-resources/legal-updates/collective-redundancy-consultation-how-should-be-done-14488.aspxCollective redundancy consultation: How it should be done? Following on from our previous article covering the process employers should follow in an individual redundancy consultation, we now focus on the practical steps an employer should go through to ensure compliance with the collective consultation process. Individual consultation v collective consultation As we mentioned in our previous article, in a redundancy scenario individual consultation is required no matter how many employees it is proposed are to be made redundant. However, where 20 or more employees are to be made redundant at one establishment over a period of 90 days or less, an employer also has a duty to consult collectively. In summary, this duty means that an employer must: inform appropriate employee representatives of certain information; consult appropriate employee representatives for a set period of time (depending on the numbers of employees affected); and notify the Secretary of State. In this article, we focus on the steps which employers should take to ensure they meet these collective information and consultation obligations. Summary of steps in a collective consultation process Step 1: Determine when the obligation to collectively consult arises. In the UK, the obligation to collectively consult is triggered when there is a proposal to dismiss as redundant 20 or more employees at one establishment within a 90-day period. However, the European Directive which is the source of these UK rules states that the trigger is when redundancies are contemplated, which is generally accepted to be at an earlier point than the proposal stage. This discrepancy between the European and UK position often makes it difficult for employers to identify the proper trigger point for collective consultation. However, as a general rule, employers should start collective consultation once an identifiable plan is formulated which could result in redundancies, but well in advance of any final decisions being made in relation to that plan. It is worth remembering that an employer can be at the proposal stage even if other alternatives are still being considered. Another point to note is that, because of the wide definition of redundancy in the European Directive, the obligation to consult collectively will arise not only in a conventional redundancy situation, but also in a contract variation situation, where there is a proposal to give notice to bring existing contracts to an end with the offer of re-engagement on new terms (subject to the same number thresholds of 20 or more employees and a 90 day period). Step 2: Ensure that appropriate employee representatives are in place. Appropriate employee representatives is an umbrella term, covering three separate potential categories of representatives: representatives of a recognised trade union; directly elected representatives, that is, elected by affected employees for the purpose of consultation on a specific redundancy proposal;and a standing body of elected or appointed representatives not specifically elected for the purpose of redundancy consultation but whose remit covers such consultation. Where an employer recognises a trade union, it must consult with representatives of that trade union in respect of any employees in the bargaining unit who are affected by the proposals. It does not matter whether the employees are themselves members of the trade union, only that they fall within the bargaining unit for which the union is recognised. Only where there is no recognised trade union can the employer then look to the other categories of employee representatives instead. Unless there is an existing employee representative body which is authorised to receive information and to consult on behalf of the affected employees, the employer will need to allow employees to appoint employee representatives for the specific redundancy consultation. There are strict rules around the election process to be followed. Employers should bear this in mind when setting the timetable for the consultation process, as nominations and elections will need to take place before the consultation process can begin. Step 3: Notify the Secretary of State. This duty is also triggered where there is a proposal to make 20 or more employees redundant at one establishment in a 90-day period. This is usually done by completing an HR1 form and the timescales for making the notification reflect the minimum consultation periods set out below. Failure to so notify is a criminal offence for which an employer may receive an unlimited fine. Step 4: Provide information to the appropriate representatives. Certain written information must be provided to the appropriate representatives as a minimum. This includes: the reason(s) for the proposed dismissals; the numbers and descriptions of employees whom it is proposed to dismiss as redundant; (c) the total number of employees of any such description employed by the employer at the establishment in question; the proposed method of selecting employees who may be dismissed; the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect; the proposed method of calculating the amount of any redundancy payments to be made (over and above the statutory redundancy payment) to employees who may be dismissed; suitable information about the use of agency workers. Consultation cannot commence until sufficient information has been provided to the appropriate representatives. Step 5: Consult with the appropriate representatives. The consultation process must include consultation 'with a view to reaching agreement with the appropriate representatives' on ways of: avoiding the dismissals; reducing the number of employees to be dismissed; mitigating the consequences of the dismissals. Consultation should be carried out with an open mind, and proper consideration should be given to any points made by the representatives. Consultation must last for certain minimum periods as follows: where the employer is proposing to dismiss 100 or more employees consultation must begin at least 45 days before the first dismissal takes effect; where the employer is proposing to dismiss between 20 and 99 employees consultation must begin at least 30 days before the first dismissal takes effect. What if these steps are not followed? The consequences of not following the collective consultation obligations can be significant. Successful protective award claims can result in awards of 90 days' gross pay per affected employee, which in a large scale redundancy situation can add up to a substantial sum of money, when the employer will already have incurred notice (if notice is not worked) and statutory redundancy payments. Given the risk involved, it is certainly worth employers taking time to ensure the correct process is followed. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 01 Aug 2018 00:00:00 +0100<![CDATA[Antonia Blackwell Charlie Rae ]]><![CDATA[ Following on from our previous article covering the process employers should follow in an individual redundancy consultation, we now focus on the practical steps an employer should go through to ensure compliance with the collective consultation process. Individual consultation v collective consultation As we mentioned in our previous article, in a redundancy scenario individual consultation is required no matter how many employees it is proposed are to be made redundant. However, where 20 or more employees are to be made redundant at one establishment over a period of 90 days or less, an employer also has a duty to consult collectively. In summary, this duty means that an employer must: inform appropriate employee representatives of certain information; consult appropriate employee representatives for a set period of time (depending on the numbers of employees affected); and notify the Secretary of State. In this article, we focus on the steps which employers should take to ensure they meet these collective information and consultation obligations. Summary of steps in a collective consultation process Step 1: Determine when the obligation to collectively consult arises. In the UK, the obligation to collectively consult is triggered when there is a proposal to dismiss as redundant 20 or more employees at one establishment within a 90-day period. However, the European Directive which is the source of these UK rules states that the trigger is when redundancies are contemplated, which is generally accepted to be at an earlier point than the proposal stage. This discrepancy between the European and UK position often makes it difficult for employers to identify the proper trigger point for collective consultation. However, as a general rule, employers should start collective consultation once an identifiable plan is formulated which could result in redundancies, but well in advance of any final decisions being made in relation to that plan. It is worth remembering that an employer can be at the proposal stage even if other alternatives are still being considered. Another point to note is that, because of the wide definition of redundancy in the European Directive, the obligation to consult collectively will arise not only in a conventional redundancy situation, but also in a contract variation situation, where there is a proposal to give notice to bring existing contracts to an end with the offer of re-engagement on new terms (subject to the same number thresholds of 20 or more employees and a 90 day period). Step 2: Ensure that appropriate employee representatives are in place. Appropriate employee representatives is an umbrella term, covering three separate potential categories of representatives: representatives of a recognised trade union; directly elected representatives, that is, elected by affected employees for the purpose of consultation on a specific redundancy proposal;and a standing body of elected or appointed representatives not specifically elected for the purpose of redundancy consultation but whose remit covers such consultation. Where an employer recognises a trade union, it must consult with representatives of that trade union in respect of any employees in the bargaining unit who are affected by the proposals. It does not matter whether the employees are themselves members of the trade union, only that they fall within the bargaining unit for which the union is recognised. Only where there is no recognised trade union can the employer then look to the other categories of employee representatives instead. Unless there is an existing employee representative body which is authorised to receive information and to consult on behalf of the affected employees, the employer will need to allow employees to appoint employee representatives for the specific redundancy consultation. There are strict rules around the election process to be followed. Employers should bear this in mind when setting the timetable for the consultation process, as nominations and elections will need to take place before the consultation process can begin. Step 3: Notify the Secretary of State. This duty is also triggered where there is a proposal to make 20 or more employees redundant at one establishment in a 90-day period. This is usually done by completing an HR1 form and the timescales for making the notification reflect the minimum consultation periods set out below. Failure to so notify is a criminal offence for which an employer may receive an unlimited fine. Step 4: Provide information to the appropriate representatives. Certain written information must be provided to the appropriate representatives as a minimum. This includes: the reason(s) for the proposed dismissals; the numbers and descriptions of employees whom it is proposed to dismiss as redundant; (c) the total number of employees of any such description employed by the employer at the establishment in question; the proposed method of selecting employees who may be dismissed; the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect; the proposed method of calculating the amount of any redundancy payments to be made (over and above the statutory redundancy payment) to employees who may be dismissed; suitable information about the use of agency workers. Consultation cannot commence until sufficient information has been provided to the appropriate representatives. Step 5: Consult with the appropriate representatives. The consultation process must include consultation 'with a view to reaching agreement with the appropriate representatives' on ways of: avoiding the dismissals; reducing the number of employees to be dismissed; mitigating the consequences of the dismissals. Consultation should be carried out with an open mind, and proper consideration should be given to any points made by the representatives. Consultation must last for certain minimum periods as follows: where the employer is proposing to dismiss 100 or more employees consultation must begin at least 45 days before the first dismissal takes effect; where the employer is proposing to dismiss between 20 and 99 employees consultation must begin at least 30 days before the first dismissal takes effect. What if these steps are not followed? The consequences of not following the collective consultation obligations can be significant. Successful protective award claims can result in awards of 90 days' gross pay per affected employee, which in a large scale redundancy situation can add up to a substantial sum of money, when the employer will already have incurred notice (if notice is not worked) and statutory redundancy payments. Given the risk involved, it is certainly worth employers taking time to ensure the correct process is followed. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{6DF5DDE4-D6F8-4A96-BE65-100D24E0A5C5}https://www.shoosmiths.co.uk/client-resources/legal-updates/when-things-go-bad-managing-the-serial-complainer-14435.aspxWhen things go bad: managing the serial complainer In this article we share some top tips for effective performance management of the employee who challenges at each step, making that process as difficult as possible. The situation You have an employee whose under performance has previously been unchallenged for various reasons. Finally, when the time comes to tackle the issue through a performance management process, the employee responds in a manner which seeks to throw the process into disarray, including: getting signed off as unfit for work, bringing a complaint of bullying against the line manager (and others), alleging that team conversations are discriminatory and making a data subject access request. 1) Don't panic and keep it simple It is easy to become intimidated by the number of allegations and become derailed by the potential of having to deal with multiple investigations that might be managed by different policies and procedures. Wherever possible, bring things back to basics. Do these complaints arise out of the original performance issue i.e. is the employee saying that they are underperforming because of the alleged bullying and/or the behaviour of colleagues in the office? If so, these are all matters that are capable of being investigated and contained within a single process. If it is clear that the allegations are separate, you should generally be able to investigate each concurrently. 2) Be consistent Ensure that you follow a process in the same way as you would for any other, more straightforward matter. For example, if you would normally ask an employee who reports as unfit for work to attend an appointment with your occupational health provider, make sure that you do the same here. Similarly, do not overreact to the situation by asking the employee to attend an occupational health assessment earlier than might otherwise be the case. Wherever possible, maintain control over the process and do not allow the employee to dictate the pace. 3) Be prepared to push back "I'm off sick so cannot attend the investigatory meeting" is often the response received. As an employer, you are entitled to test this position and obtain information from the employee's GP or occupational health adviser to confirm. Where confirmation is received, you can either decide whether to wait to see how long the absence will last (taking the duration of the fit note as the starting point) or give the employee some alternative options. Those options could include: submitting a series of written questions and asking the employee to respond in writing; offering to conduct the meeting by phone, Skype or webcam; offer a neutral venue. There is a balance to be struck between moving the process forward and being overhanded. Much will depend on how genuine and serious the health condition is considered to be. 4) Keep the lines of communication open. Out of sight, out of mind? It can be easy for an employee who is away from the workplace to feel isolated and to miss out on the regular updates typically shared in team meetings and one-to-ones. These little things can appear to be more significant when an employee feels that they are already under attack. Similarly, the longer the period where there is no contact between the parties the more difficult the next conversation tends to be. It is important therefore that communication links, even if only by email, are maintained and that employees are kept up- to- date. 5) Assess the risks and act accordingly Take a moment to consider the possible outcomes of your particular case. Are you going to be able to resolve the situation through amicable means or has the relationship deteriorated to such an extent that either a dismissal or settlement may be an option? If you are confident in the process, it will set the right tone to see things through and defend any case. If a deteriorating relationship is a genuine concern, conduct an objective assessment of the types of claim that the employee may be able to bring and weigh that against the cost (management time, stress on the rest of the team etc.) of continuing with the process. If the assessment identifies that the cost of continuing outweighs the cost and risks of the employee presenting a claim, you may wish to explore the possibility of a protected conversation. Alternatively, you may decide to proceed with the formal process. In some scenarios, the behaviour of the individual may result in their dismissal either for conduct reasons or, in exceptional cases, some other substantial reason. In such cases, the employer may well decide to defend any subsequent case, in order to make it clear to other employees that such behaviour will not be tolerated and that formal processes cannot easily be derailed. 6) Take stock and identify any learning points Every day is a school day. Each situation is different and it is likely that there will be something that, when assessed objectively, you might choose to do differently a second time around. Often, that learning point will be to address the concerns at an earlier stage so that the reaction is not so significant and is more manageable. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Thu, 26 Jul 2018 00:00:00 +0100<![CDATA[Simon Fennell Gwynneth Tan ]]><![CDATA[ In this article we share some top tips for effective performance management of the employee who challenges at each step, making that process as difficult as possible. The situation You have an employee whose under performance has previously been unchallenged for various reasons. Finally, when the time comes to tackle the issue through a performance management process, the employee responds in a manner which seeks to throw the process into disarray, including: getting signed off as unfit for work, bringing a complaint of bullying against the line manager (and others), alleging that team conversations are discriminatory and making a data subject access request. 1) Don't panic and keep it simple It is easy to become intimidated by the number of allegations and become derailed by the potential of having to deal with multiple investigations that might be managed by different policies and procedures. Wherever possible, bring things back to basics. Do these complaints arise out of the original performance issue i.e. is the employee saying that they are underperforming because of the alleged bullying and/or the behaviour of colleagues in the office? If so, these are all matters that are capable of being investigated and contained within a single process. If it is clear that the allegations are separate, you should generally be able to investigate each concurrently. 2) Be consistent Ensure that you follow a process in the same way as you would for any other, more straightforward matter. For example, if you would normally ask an employee who reports as unfit for work to attend an appointment with your occupational health provider, make sure that you do the same here. Similarly, do not overreact to the situation by asking the employee to attend an occupational health assessment earlier than might otherwise be the case. Wherever possible, maintain control over the process and do not allow the employee to dictate the pace. 3) Be prepared to push back "I'm off sick so cannot attend the investigatory meeting" is often the response received. As an employer, you are entitled to test this position and obtain information from the employee's GP or occupational health adviser to confirm. Where confirmation is received, you can either decide whether to wait to see how long the absence will last (taking the duration of the fit note as the starting point) or give the employee some alternative options. Those options could include: submitting a series of written questions and asking the employee to respond in writing; offering to conduct the meeting by phone, Skype or webcam; offer a neutral venue. There is a balance to be struck between moving the process forward and being overhanded. Much will depend on how genuine and serious the health condition is considered to be. 4) Keep the lines of communication open. Out of sight, out of mind? It can be easy for an employee who is away from the workplace to feel isolated and to miss out on the regular updates typically shared in team meetings and one-to-ones. These little things can appear to be more significant when an employee feels that they are already under attack. Similarly, the longer the period where there is no contact between the parties the more difficult the next conversation tends to be. It is important therefore that communication links, even if only by email, are maintained and that employees are kept up- to- date. 5) Assess the risks and act accordingly Take a moment to consider the possible outcomes of your particular case. Are you going to be able to resolve the situation through amicable means or has the relationship deteriorated to such an extent that either a dismissal or settlement may be an option? If you are confident in the process, it will set the right tone to see things through and defend any case. If a deteriorating relationship is a genuine concern, conduct an objective assessment of the types of claim that the employee may be able to bring and weigh that against the cost (management time, stress on the rest of the team etc.) of continuing with the process. If the assessment identifies that the cost of continuing outweighs the cost and risks of the employee presenting a claim, you may wish to explore the possibility of a protected conversation. Alternatively, you may decide to proceed with the formal process. In some scenarios, the behaviour of the individual may result in their dismissal either for conduct reasons or, in exceptional cases, some other substantial reason. In such cases, the employer may well decide to defend any subsequent case, in order to make it clear to other employees that such behaviour will not be tolerated and that formal processes cannot easily be derailed. 6) Take stock and identify any learning points Every day is a school day. Each situation is different and it is likely that there will be something that, when assessed objectively, you might choose to do differently a second time around. Often, that learning point will be to address the concerns at an earlier stage so that the reaction is not so significant and is more manageable. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>